Kaplan v Karpfen

Kaplan v Karpfen 2008 NY Slip Op 10200 [57 AD3d 409] December 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Rebecca King Kaplan, Appellant,
v
Robin B. Karpfen, M.D., et al., Respondents.

—[*1] Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for appellant.

Rende, Ryan & Downes, LLP, White Plains (Roland T. Koke of counsel), for Robin B. Karpfen, M.D. and Middletown OBS-GYN Assoc., P.C., respondents.

Anthony Sammartano, White Plains, for Satish Kumar Rohatgi, M.D., respondent.

O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Montgomery L. Effinger of counsel), for Horton Hospital, respondent.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered August 13, 2007, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Satish Kumar Rohatgi, M.D., and Horton Hospital for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiffs failed to raise a triable issue of fact in opposition to defendants' demonstration of their entitlement to summary judgment. Their experts' opinions that the infant plaintiff suffered traumatic brain injury either during birth or shortly thereafter were conclusory and speculative (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Bullard v St. Barnabas Hosp., 27 AD3d 206 [2006]). While these opinions were based in large part on the presence of a cephalohematoma noted a few days after the birth, none of plaintiffs' experts contested the assertions of defendants' experts that this injury, and the others noted, including a broken clavicle, were superficial, were a normal consequence of an uncomplicated birth, and did not indicate brain damage. Nor did they explain except in conclusory terms how or when the alleged traumatic brain injury occurred, the causal relationship between the injury and plaintiff's present behavioral problems, or the standard of care that defendants violated.

Plaintiffs' psychologist and psychiatrist failed to demonstrate that they possessed sufficient knowledge or expertise to testify outside their specialties as to either the existence and cause of plaintiff's alleged brain injury or defendants' alleged deviation from the accepted [*2]standard of care for pediatricians or obstetricians and gynecologists (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Browder v New York City Health & Hosps. Corp., 37 AD3d 375 [2007]). Concur—Lippman, P.J., Gonzalez, Nardelli, Buckley and Acosta, JJ.